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Refusal of a staff appraisal can justify notice of ordinary termination
BlogEmployment Germany

An employment agreement may be terminated for cause if an employee who has been appropriately cautioned refuses an official conversation with his/her superior because the employee is only willing to have such conversations in the presence of a works council member (case-by-case decision, 18 Sa 1140/15, State Labor Court Hamm – Landesarbeitsgericht Hamm).

The plaintiff had been employed in the area of youth welfare since 01.04.2011. After having been given several cautions, the plaintiff received another caution on 24.06.2014. Among other things, the defendant criticized the plaintiff for refusing participation in an official meeting. This was based on the plaintiff’s intention to consult a works council member about this official meeting, for which the works council and the plaintiff had requested a postponement. However, the defendant declined the postponement and gave a warning. After the plaintiff did not attend another meeting arranged by the defendant, because she still wanted to come to an agreement with the works council in advance, the defendant terminated the employment agreement extraordinarily, alternatively ordinarily on 29.09.2014.

The State Labor Court (Landesarbeitsgericht) considered the ordinary termination at least to be justified. The plaintiff violated her contractual obligations when she did not comply with the meeting appointments set by the employer. The employer can determine the time, place and contents of work performance. Therefore, the employer is also generally entitled to oblige the employee to participate in conversations in which he would like to prepare or give instructions or complain of their non-fulfillment. The requirement to attend the meeting did not infringe the employer’s reasonable discretion. The plaintiff was not entitled to consult a works council member or another person of trust regarding the meeting. As the employee had already been given a warning, no milder responses were available to the defendant to react to the failure of the plaintiff to attend.